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Diederich v. Walters

AUGUST 22, 1975.




APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM E. BLACK, Judge, presiding.


Rehearing denied September 26, 1975.

This was an action to recover damages for the wrongful death of Richard Diederich, a minor pedestrian. The complaint was based upon the alleged negligence of the defendant, William W. Walters, the driver of a motor vehicle which struck and killed the minor pedestrian. The case was tried before a jury which rendered a verdict for the defendant. The plaintiff appeals.

The decedent was walking south along the west side of Clarendon Hills Road in company with Vicki Pusateri and Edward Goff. Apparently he was slightly behind the two witnesses. Defendant was driving south along this road at 9:45 in the evening of September 18, 1971. Vicki Pusateri and Edward Goff heard the defendant's car approaching from the north but did not see it until it passed by them. They had stepped off the pavement onto the shoulder. The decedent was struck and carried down the road by defendant's car. The decedent was 13 years of age.

Two issues are presented in this appeal. The first is whether the trial court erred in permitting the defense counsel on cross-examination of plaintiff's witness, an investigating police officer who was not an eyewitness, to state his opinion as to the speed of defendant's automobile. The second issue raised concerns the refusal of the trial court to instruct the jury that the 13-year-old decedent was presumed to be free from contributory negligence.

On direct examination the investigating officer testified as to what he found when he arrived at the scene of the accident. Specifically, he testified that he found one of the boy's shoes approximately 120 feet north of the body, the other shoe was found off the pavement; that the car's skid marks measured 61 feet and 63 feet; and that defendant's car was found 100 feet south of the end of the skid marks. Upon cross-examination defense counsel elicited testimony from the officer as to the use of a "nomograph." The witness testified that a nomograph is a chart which gives an approximate measure of the speed of a vehicle, based upon the length of the skid marks and the coefficient of the friction of the road surface.

In the case before us the investigating officer did not testify that he had had any special skill or training in the operation of the so-called "nomograph" and the results obtained therefrom. Nonetheless he testified over objection that, in his opinion, the defendant's motor vehicle was traveling at 34 miles per hour at the time of the impact with the decedent.

• 1 In this court's opinion the above is an oversimplification of the essential elements necessary in an attempt by an expert to determine the speed of a motor vehicle from skid marks. Attention is directed to 10 Am. Jur. Proof of Facts 661 (1961). Some 25-30 elements are to be considered in an attempt to determine the speed of a motor vehicle from the skid marks. It will serve no useful purpose to list all of the elements but some of these would include the type of vehicle and its state of repair, the type of pavement; the weight of the vehicle and the distribution of weight in the vehicle; how much reaction time there was; type of tire tread and its state of wear and temperature. It is to be noted that the investigating officer had been on the police force for 5 months and was not qualified in any way either by the plaintiff or the defendant as an expert in estimating the speed of a motor vehicle from the skid marks laid down by that vehicle. Defendant contends that inasmuch as the plaintiff introduced the length of the skid marks into evidence by the investigating officer, he should be allowed to have the officer explain the same by determining the estimated speed the defendant was driving at the time of the striking of the boy herein. This argument must, of necessity, fail because the mere fact that the plaintiff had the investigating officer testify as to the length of the skid marks, a mere observation of the scene of the accident, in no way qualifies the officer as an expert to estimate speed in the manner contended herein. He definitely was not qualified as an expert and his testimony was purely a guess, speculation or conjecture.

In Deaver v. Hickox (1967), 81 Ill. App.2d 79, 224 N.E.2d 468, the trial court allowed an investigating officer to testify as to his estimate of the speed of the vehicle involved in the accident therein from the skid marks, based upon his experience as a police officer for 8 years, training in the police academy and courses at Northwestern University. The reviewing court held that the officer's testimony was inadmissible. The court observed:

"First, no statement was elicited from the witness, or from others, that there exists a science requiring special skills beyond the ken of the average juror from which a judgment of speed with reference to the vehicles involved could be made with any degree of certainty. Second, no statement was elicited from the witness that he was possessed of the skills necessary to make a determination of speed with relative certainty from the facts presented to him. Third, no discussion was elicited with reference to the factors involved in making a determination of speed either from skid marks, or damage to the vehicles * * *.

Fourth, assuming that special skills exist from which a determination of speed may be made with relative certainty, no inquiry was made as to whether such special skills beyond the ken of the average juror were in fact employed by the witness * * *. Fifth, if particular factors were employed to make the determination of speed, those factors were not analyzed in any manner sufficient to enable the jury to determine whether all factors used in arriving at the judgment were, in fact, present. Sixth, as to the degree of certainty of the officer's opinion, an entirely different impression is gained from the testimony presented to the jury, and that presented to the court out of the presence of the jury. Seventh, it appears that if it may be assumed that there is a science involving special skills for determining speeds of vehicles from physical facts which skills are beyond the ken of the average juror, it affirmatively appears that the officer did not use those skills but relied rather upon a generalization of his own experience, which the officer himself described as a speculation." 81 Ill. App.2d 79, 84, 224 N.E.2d 468, 470-71.

• 2, 3 We further find that even if the investigating officer's testimony were valid as that of a reconstruction expert, the same would be inadmissible as there were, in fact, two eyewitnesses at the scene of the accident. As the supreme court stated in Plank v. Holman (1970), 46 Ill.2d 465, 470-71, 264 N.E.2d 12, 15:

"However, reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available. Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror."

In the case before us we find that the investigating officer was not qualified in any way to testify as to his opinion of the speed of the defendant's vehicle. See also Miller v. Pillsbury Co. (1965), 33 Ill.2d ...

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